SCC decision on Oland appeal matter unsurprising: Hicks

OTTAWA — Dennis Oland could soon be back in a New Brunswick courtroom, facing trial for the second-degree murder of his multimillionaire father all over again, but his lawyer says that's just what they're hoping for.

On Thursday, the Supreme Court of Canada dismissed an application by the Crown to restore Dennis Oland's conviction, while his lawyers had filed a cross-appeal seeking an acquittal. Both were denied.

“We're happy with the outcome,'' defence lawyer Alan Gold said in an interview. “The Crown was trying to take away our new trial by having the Supreme Court say it shouldn't have been ordered. We're happy that the Supreme Court said no to that.''

The three-judge panel did not provide reasons for the decision.

“Dennis is back in the same position he was in when first charged. He's presumed innocent and there will be a trial sometime in the future,'' Gold said from his Toronto office.

Richard Oland, 69, was found face down in a pool of blood in his Saint John office on July 7, 2011. An autopsy showed he had suffered 45 sharp and blunt force blows to his head, neck and hands. A murder weapon was never found.

During Dennis Oland's trial, court heard he had visited his father's office the night before and was the last known person to see him alive.

Dennis Oland, a 49-year-old financial planner and scion of one of the Maritimes' most prominent families, was convicted of second-degree murder in 2015 and was sentenced to life in prison with no chance of parole for 10 years.

However, he was released on bail last October when the New Brunswick Court of Appeal ordered a new trial, citing an error in the trial judge's instructions to the jury.

Dennis Oland had told police he was wearing a navy blazer when he visited his father, but video evidence and numerous witnesses said he was actually wearing a brown jacket that was later found to have tiny traces of blood and DNA that matched his father's profile.

The Crown portrayed Dennis Oland's original statement about the jacket as an intentional lie, while the defence said it was an honest mistake. The appeal court said the trial judge did not properly instruct the jurors as to the probative value of that statement.

Now that the Supreme Court has refused to review the matter, the New Brunswick Court of Queen's Bench will be asked to set a date for a new trial.

Gold said the date could be set at a court hearing on Aug. 8.

He said both the defence and Crown will need time to prepare for a trial, which isn’t expected to begin until 2018, at the earliest.

“At the first trial, the results were tainted by irreversible errors, so this time we're going to try to do it right,'' Gold said.

However, the Crown has the option of dropping the case, which would mean the latest decision would stand and Dennis Oland would not face prosecution.

However, Nicole O'Byrne, a law professor at the University of New Brunswick, said she expects the Crown will want to proceed.

“They could decide not to, but I expect with the amount of resources and effort they've put into this already, I expect they'll continue with a new trial,'' she said.

Still, it has been more than six years since the murder, and O'Byrne said the Crown faces a more difficult challenge with each passing day.

“The general wisdom is the longer these cases go, the benefit goes to the defence because it's easier to bring up a reasonable doubt on one key piece of the evidence needed to prove the Crown's case,'' she said.

Gold said a decision not to retry Dennis Oland would be at the top of his wish list. But he wouldn't speculate on what the Crown might decide.

A spokesman from the province's Public Prosecutions Office declined to comment as the matter is still before the courts.

Dennis Oland's first trial lasted more than 60 days. Gold said the retrial could be quite different.

“It essentially is a brand new proceeding and may bear little resemblance to the first proceeding,'' he said.

O'Byrne said pre-trial hearings dealing with admissibility of evidence will be key.

“All those things, like the blood-stained jacket, the cellphone data, will all be back in play as to whether they should have been admissible to the trial proper. So we're right back to the beginning here with respect to all the different pieces of evidence,'' she said.

“The Supreme Court of Canada is not a court of last resortestablished to correct ordinary errors in the lower court,” he says.

“It is a court of judicial policy, and carefully selects the cases it chooses to hear on appeal. The court seeks appeal cases that raise issues of national importance, or that represent areas of law that are unsettled and controversial.

“The Oland appeal was totally lacking in such compelling attributes and accordingly leave to appeal was denied.”

Hicks, a partner with Hicks Adams LLP, points to the fact the Court of Appeal of New Brunswick ordered a new trial for Oland because the trial judge failed to properly instruct the jury on the law.

“It was incumbent upon the trial judge to instruct the jury that, without other independent evidence, the jury could not conclude that Oland was lying about this jacket,” he says.

“Further, and more importantly, the jury had to be instructed not to draw an inference of guilt from Oland's confusion of the jackets.”

Hicks says the trial judge’s failure to properly instruct the jury “properly constituted, as appellate lawyers like to say, to non-direction on an important issue.

“While this was a legal error, the issue of the proper instruction to the jury was a settled point of law and one without controversy,” he says.

“It was the very ordinary nature of this error that doomed the appeal application to the Supreme Court of Canada.”